Exporting the Missouri plan: judicial appointment commissions.

• Author: Volcansek, Mary L.
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

1. INTRODUCTION

   Debates over the best methods for selecting judges in the United States usually turn on finding an appropriate balance between independence and accountability for judges, (1) but elsewhere the tension between those two competing ends has been resolved in favor of judicial independence. According to Martin Shapiro, judges cannot, though, be truly independent, because they are dependent on those to whom they owe their office. (2) or, as Jean Blondel sees it, the question becomes one of "from whom should judges be independent?" (3) Jud ges are, in other words, dependent in some sense on those to whom they are accountable. New democracies and nations that have redemocratized after a period of authoritarian rule have posed the issue of judicial independence, then, quite differently from how it is viewed in the United States; indeed, the very connotations of independence and accountability abroad assume dimensions unknown in the United States. Notably, a version of the Missouri Plan, known elsewhere as judicial appointment commissions, "look[s] likely to become the most popular selection system of the twenty-first century." (4) This Article explores the twists and turns and the motivations and complications of judicial independence and judicial appointment commissions to suggest that perhaps American states might benefit from experiences elsewhere when choosing to modify, reform or improve judicial selection systems here.

   Decisions about how judges are selected, compensated and retained are inextricably connected to determinations of how much independence can be safely allocated to judges. Politicians designing new constitutions when first creating a democratic system, when re-democratizing after a period of autocratic rule or even when reforming judicial systems do not necessarily consider judicial independence as the overriding consideration. Particularly when judicial review is part of the equation, why would politicians who hope to exercise power in the future want independent judges capable of trumping their policy choices as violating the constitution? Even in the absence of the power of judicial review, all judges potentially confront politically charged disputes. In either case, as Ramsmeyer and Rasmusen ask, "[W]ill real-world politicians keep judges independent from themselves?" (5)

   Ran Hirschl argues that constitutionalization and its corollary, judicial independence, occur because of hegemonic preservation. The interplay of threatened political elites, who are fearful of the fickle nature of democratic politics; economic elites, who want protection from government through protection of property rights; and judicial elites, who seek to increase their own power and influence, drives judicial reform, both in substance and in timing. (6) Interactions among these three elites act to drive an effort to preserve the hegemony achieved under the previous rules. Ginsburg argues that configurations of judiciaries at the time constitutions are drafted are predicated upon the uncertainty of the politicians about their future political assets; (7) therefore, by placing judicial review in the hands of judges and assuring their independence, the politicians "entrench the constitutional bargain" (8) and buy insurance (risk aversion) to guarantee that political parties who lose at the polls can protect their interests nonetheless through the legal process. (9) Similarly, Finkel explains that judicial reform, specifically in Mexico, Argentina and Peru in the 1990s, was driven by the ruling regime's desire for "insurance against future political uncertainty." (10)

   Outside of the United States, not only is judicial independence not a principle revered for itself, but also judicial accountability can be sought through direct, even seemingly perverse, tactics. The American goal of democratic accountability is rarely part of the calculus. Many examples prove this. For example, in 1975, Indian President Indira Gandhi declared a state of emergency and suspended the right of access to any court when alleging violations of fundamental rights. (11) When the Russian Constitutional Court invalidated President Boris Yeltsin's 1993 decree that closed the legislative branch of government, Yeltsin then issued a decree that closed the Constitutional Court. (12) The President of Pakistan in 2007 declared a state of emergency, suspended the constitution and placed thirteen of the nation's seventeen Supreme Court Justices under house arrest; (13) the Chief Justice was not restored to his office until 2009 by another president who acted only when forced to do so by a vociferous opposition. (14) The Argentine and Bolivian high courts have often been the object of purges, with the Bolivian Supreme Court having been totally replaced seventeen times since 1950. (15) In Zimbabwe, court cases are simply reassigned so that major ones with significant political implications are transferred to judges who are inclined to sympathize with the government. (16) A similar tactic was followed in El Salvador in the 1980s when embarrassing human rights cases were to be heard; the supreme Court President simply rotated judges to war-torn regions to prevent them from hearing cases. (17)

   Intimidation limits judicial independence, but physical violence, or threats of it, can be even more stifling. In Colombia between 1979 and 1991, more than five hundred murders or attempted murders were committed against lawyers and judges, and one-third of the judges reported death threats against themselves or their families. (18) The presiding regime in Kazakhstan abolished the Constitutional Court when it attempted to act independently, and the entire Constitutional Court was forced to resign in Belarus when it defied the government with some decisions. (19)

   Thus, the terms and conditions of judicial service and the mechanisms to best serve both independence and accountability stand as particularly important when crafting new constitutions or designing methods to name judges. Other than a short-lived experiment in revolutionary France, (20) judicial elections have been found only in the united states and in Bolivia after passage of President Evo Morales' 2008 constitution. (21)

2. JUDICIAL APPOINTMENT COMMISSIONS IN NEW DEMOCRACIES

   Nations that have adopted judicial appointment commissions have incorporated only the first half of the Missouri Plan, merit selection, and rejected retention elections. That decision signals a clear preference for judicial independence and a secondary, perhaps non-existent, role for judicial accountability to the electorate. Moreover, often citing the U.S. experience with the early New Deal Court, nations have generally established mandatory retirement ages in lieu of life tenure or set term lengths, sometimes renewable but often not. (22) One study of twenty-seven democracies in Europe circa 2001 found that twelve countries had mandatory retirement ages; (23) fourteen had non-renewable terms and seven employed renewable ones. (24) What is most notably different is that other nations have not adopted the committee formula of some combination of lawyers, judges and laypeople that characterizes selection committees in Missouri Plan schemes in the united states. Because of the so-called "democratic deficit" that often accompanies selection of judges, representatives of the politically accountable branches of government are frequently included in the selection committees.

   Israel has the oldest judicial appointment commission that names judges to the civil courts and to the Supreme Court. The 1953 Judges Law "deliberately sought to create a judicial system insulated from an otherwise highly politicized society." (25) The nine-member commission that selects judges for all levels of courts in Israel consists of the President of the Supreme Court, two other Supreme Court Judges, the Minister of Justice (attorney general), another cabinet minister, two members of the legislature (one of whom has traditionally been selected from the opposition ranks) and two representatives of the Israeli bar. (26) By tradition, if the three Supreme Court Judges do not concur on a candidate for the Supreme Court, that candidate will not be selected. (27) Representatives of the bar are elected by the Council of the Bar and serve for three years, whereas the representatives from the legislature are elected from within that body. (28) Candidates may be nominated by the Minister of Justice, the President of the Supreme Court or any three members of the committee, but in practice nominees are people upon whom the Minister of Justice and the President of the Supreme Court agree. The commission screens and selects the judges; it does not nominate to the executive or another official. (29) All judges at all levels serve for life, until the mandatory retirement age of seventy. (30) The Israeli system has all of the marks of an apolitical system for appointing judges, but political considerations have entered into the process. On at least two occasions, laws making exceptions to the process have been passed for political purposes. In one case, a law was passed to accord legitimacy to one Supreme Court Judge who did not meet the legal requirements to serve; in another case, the mandatory retirement age was changed to ensure that one retiring judge could remain on the court to preside over the potentially tricky trial of Adolph Eichmann. (31)

   The Israeli judicial appointment commission was designed for a highly fragmented and divided society, and, not surprisingly, several of the new democracies in post-communist Europe also adopted the model. Most of these new democracies--Estonia is the exception--separate the regular judiciary from a separate constitutional court. Judges named to the constitutional courts serve seven-to-ten-year, nonrenewable terms and are appointed through some division of appointments between the executive and legislative branches...